Ten Minutes on the Supreme Court


Let me quickly cover some introductory observations. Yes, the recent confirmation represents a defining moment in the American judiciary. Yes, the political theatre shows the depths of our fall into a sullen basement of partisanship. And on a very serious tone, the confirmation highlights the journey still before us to eradicate sexual violence.

Now, some questions, and my perspective on the answers. Then a conclusion on what was needed, and no one provided.

Is the Judge qualified?

Certainly. Few if any have questioned this. His education, experience, knowledge, accomplishments and credentials rank sufficiently high to make him a qualified candidate. And his conservative leanings sit sufficiently in the broad mainstream to not disqualify him. And I will rate his partisanship acceptable, barely.

So he is qualified. Unless of course, he committed a sexual assault.

Qualifications aside, do we remain troubled by the accusation of sexual assault?

Certainly. Testimony on a traumatic incident of 36 years ago, especially as traumatic as sexual assault, can carry the same weight as if the incident occurred recently. When a death occurred in my family, I was in grade school. I remember being taken out of class, to take exams, since to accompany my family out of town I would be absent during the exam week. I do not remember the month, nor what grade I was in, nor what subjects the exams concerned, nor the name of the teacher proctoring the exam. But I do remember the haunting lonely feeling of being alone in the giant auditorium taking the exams on a chair without a desk.

So we can understand that traumatic memories remain fresh while details around the incident fade.

We can also imagine, just like no one in my class would remember my being quietly excused, no one at the small gathering during which the alleged assault occurred would remember Ford leaving early. And her ride home? Ford needed rides all the time, everywhere, likely hundreds of times in her high school days.

Did the Judge lie?

On balance, not about his denial of the sexual assault. Why do I think that? The Judge, if he did commit the assault, most likely either never remembered or readily forgot. Multiple indications surfaced that he drank a lot. We can imagine scenarios of blurred memory.

And the ethos of the times, and the blusterous nature of his peer group, could have combined with even a partially blurred memory to convert an assault, at least in the Judge’s mind, into a harmless act of horseplay or a fictitious, fake boast. Either of which could have slipped from his memory.

Would we Hire Him?

Likely not. Given a list of relatively equal candidates, or even a group of new hires still in their probation period, we might not take a chance. We would need to carefully assess the liabilities of bringing on a person with an alleged sexual assault. It would depend on the job. As a high school teacher, a setting with potentially vulnerable students? Likely not.

But hiring an employee differs dramatically from confirming a Supreme Court nominee. In a job situation, if a credible accusation arose, we could remove the candidate from consideration quietly, no drama.

Even if a job offer had been extended, we could work to cancel the offer. Such a step could be tricky, but a properly crafted job offer would state the offer as conditional on health, background, references, et al. Again, the job offer could be rescinded, no drama, no publicity, no ideological ramifications.

In contrast, too much, way too much, political positioning and institutional momentum lies in the balance to take such steps once a Supreme Court nomination has occurred. A nominee becomes locked in.

Here lies the tragedy. Had Ford acted sooner, Kavanaugh may have be passed over.

Did the Judge commit a sexual assault?

Possibly, even likely, but we can not tell for sure. We would need a criminal investigation, or a broader background investigation, i.e. asking just if people remember the party is not broad. Only three witnesses exist to the assault, and two committed the alleged act and one was the victim. So no uninvolved witnesses exist to the assault, and the part was unremarkable.

We thus need enough information to connect the dots, like floor plans of houses, like a good scrutiny of drinking habits, like the Judge’s completeness in recording events on his calendar, like an understanding of Leyland Keyser’s denial of knowing Kavanaugh. This type information would put us closer to the truth – either way.

That no one remembers the party, or driving Ford home, provides limited defense. I recall the time in my twenties I crashed on my bicycle and broke my collar bone. But I rode my bike daily, so do I remember all the uneventful trips. No. That’s typical of memory processes. The uneventful fades. The night of the assault was uneventful to everyone else but Ford.

Thus, getting closer to the truth required connecting dots.

Could Ford have not been assaulted?

Very unlikely. She depicted the incident credibly. She put in an extra front door, extremely unusual if not motivated by the trauma. She revealed the assault to a number of close individuals.

Could Ford have suffered the assault but mistaken the assaulter?

Possibly, even with Ford’s 100% assurances. Victims remember the horror and fear and violation of assaults vividly, but misidentify assailants readily and frequently.

But that generally occurs when the victim does not know the assailant, and the assailant attacks suddenly. That was not the case here.

Ford could have conflated individuals over time. But she knew the Judge, and saw him at the gathering before and after the alleged assault. Thus, on balance, Ford’s misidentifying the Judge seems less likely than Kavanaugh forgetting his assaulting.

What about Kavanaugh’s Angry Rant? Give him a pass?

I would, for his anger. Kavanaugh never experienced a political barrage like his confirmation process. That he acted angry can be considered an outlier. Did he act partisan? We knew he had partisan leanings before.

Okay, What’s the Point Here? So Far Nothing Much New.

A subtle one.

Did the Judge commit self-deception?

Did he view and consider what to him stand as his stellar accomplishments, as so extensive as to prevent him from conceiving he could have crossed the line.

I am considering if this is possible. Could Kavanaugh tell himself – look at all this I have done: I garnered pages upon pages of accommodations; I shined for years and years in sports; I promoted dozens and dozens of woman; I excelled for decades and decades in high profile positions; I am among the best; I worked my entire life tirelessly to be the best and most committed. I could not have ever, ever committed sexual assault.

Look at all this, he tells himself. With all this good, how can I have anything bad. The weight of the exceptional parts of my character rises to such heights as to eliminate any possibility of my committing a sexual assault. Ford’s testimony must be mistaken.

But we sense he ran very heavy on drinking, heavy enough that one exception could have occurred. And we sense he held himself then and now in such high regard he did not see that if you drink enough, you can cross the line. A prudent person would have drank less, to avoid the risk. But he didn’t see his lack of prudence then, and can’t conceive now that he lacked prudence.

Now, of course, Ford may also be too sure. She affirms to herself, not incorrectly, that my knowledge that it was Kavanaugh stands so emotionally and academically supported, that I am sure.

However, we can conceive that, possibly, maybe not very likely, or even only remotely possible, we can conceive that Ford’s academic training subconsciously helped her remove doubt. That is a hard verdict to levy against Ford, but we must put it down as possible.


We needed forethought.

Ford needed to act quicker to send in her allegation. That she did not so do can be understood. But the fact remains had her letter arrived earlier things could have gone better. Better forethought on her part would have helped.

Kavanaugh needed to review his own past. He needed to recognize his drinking and that something during that drinking could create issues. I wish he had reviewed his past, and with an admission to himself of possible bad actions during his past drinking, pulled himself out of contention. But the prize was too big. Still, he needed to have recognized the vulnerability his drinking presented, and pulled his name off the list early, before being nominated.

Otherwise stellar candidates for public positions have disqualified themselves for not having paid taxes on people who did child care. They recognized their vulnerability.

Feinstein need to know in leaking Washington she could not keep the letter confidential. That would have taken her off the ill-fated path of trying to do so. She would have devised a better path forward. Let’s give her an “A” grade for her efforts; but she needed to see Ford and the country required an “A+” effort to navigate the situation. I give her no pass.

Democrats, say Schumer, needed to foresee the Republicans ramming this through. It was obvious the Republicans would take stern and uncomfortable measures to get approval. The Democrats, if they wanted a true judgment on Kavanaugh, and not to forestall approval of a conservative judge in total, would have committed to letting the Republicans approve another, almost certainly conservative, nominee in lame duck session, if Kavanaugh was proven tainted. Schumer needed an “A+” to do this. I give him a “B minus” or worse. And I give him no pass.

Republicans needed to respect our country. The Supreme Court must be balanced, above reproach, a sentinel of intellectual and legal rigor. McConnell, and the Republicans, by nominating an individual that would unbalance the court, mistook their ideology as essentially God-like. They did not see that to lock one’s political philosophy into the legal institution of the Supreme Court represents an inappropriate enshrinement.

McConnell needed an “A+” to see the national interest, and not just the Republican interest. I give him almost a failing grade, on this inability. And I give him no pass.

Yes, we needed foresight. And nobody demonstrated it.

Source by David Mascone